Denied clearance for issue that was previously adjudicated


#1

I was recently denied a clearance for something I had already reported and was adjudicated. The short story is:

My ex girlfriend was a non-U.S. person (Malawi) who was in the process of getting her citizenship and joining the U.S. Army, and I reported her to my SSO in early 2007. I received a job offer to work in D.C., but one of the stipulations was that co-habitation with a foreign national might be a disqualifying factor. With that, we amicably separated and I moved from California to D.C. in Oct 2007. Over a year later in Dec 2008, I put on my SF-86 that I do not have ties with anyone of foreign citizenship with whom I'm bound by affection, etc etc. One reason is because we were no longer dating, second reason is that she was (possibly) already a U.S. person at that time. Nevertheless, I spoke to the investigator about it during the interview (2009), described in detail the genesis of our relationship (including the financial aspects of sharing expenses (rent, utilities, etc)) and answered all follow up questions to the interviewer's satisfaction and I was adjudicated with a TS/SCI w/Poly.

Fast forward to 2014. Instead of answering the SF-86 foreign contact question the same as I did in 2008, I decided to add all of the details I told the previous investigator in 2009. There was no information that had not already been reported. I received an LOR that referenced the differences in the 2008 SF-86 and the information I told the investigator (something already known and adjudicated); and differences between the 2008 and 2014 SF-86s (which was me reporting the information already reported).

I did an in-person hearing at DOHA in July last year. The sent a letter in August saying "Your failure to disclose your personal relationship with a foreign national on your SF-86 (2008) and your inconsistent statements about the relationship and her citizenship during your clearance interview (2014) raises questions about your honesty, credibility, and trustworthiness..." I also had an official letter submitted to the judge from my SSO confirming that I did report her in early 2007 and that he (and his office) confirmed my transparency and cooperation and had no reservations about my honesty, loyalty or integrity.

It seems as if PSAB did not consider what I thought was a reasonable explanation, nor weigh any of the myriad letters of support and character witnesses who were there on my behalf (GG-15s). What do I have to do to mitigate concerns for an issue for which I had already been adjudicated?


#2

The DOHA decision letter should have addressed the issues and why they were concerns, what mitigation if any was applied and why the the issues were not fully mitigated. Did you request a copy of the 2008 investigation to see what the Report of Investigation (ROI) had about your interview with the investigator? That could have provided mitigation if the information was there.


#3

I have not seen the DOHA decision letter, although I believe the PSAB referenced it in their final decision letter. Strangely, the final decision letter was sent August of last year, but my SSO just received it two days ago. I am requesting a copy of the 2008 investigation along with other files pertinent to this process. But there are a couple things that make me scratch my head:

1.) I reported all of the information and answered all of the investigators questions; they did not discover anything additional during the course of the investigation.

2.) I was polygraphed in Jan 2008; I walked through everything with the polygrapher about her and the situation. I passed, which may be the reason why they didn't make a big deal about the SF-86 back then. I explained to the investigator why I had initially not put the information in the SF-86 (we'd been apart for almost 2 years and she was likely a U.S. citizen by then), but I told her everything. They adjudicated my clearance a few months later.

3.) In 2014, I wasn't going to leave the information out of SF-86 again, so I added it. Again, nothing additional that I did not already tell the previous investigator, including financial support in the for of splitting the bills/rent. To me, all of this was superficial because the government already knew about it and she now an AMCIT serving in the U.S. Army.

In the final decision letter, PSAB still says I failed to disclose my relationship with her "on my SF86", even though I reported it to my SSO, the polygrapher, and the investigator. I think that would be strong evidence that I did not intend to deceive anyone, yet it is still cited in the final decision letter. The other was the "inconsistent statements about the relationship and her citizenship during your clearance interview (2014)". I walked through everything with the 2014 investigator and answered her questions as well; however, I believe she was extremely confused on the timeline of events and what the facts were, because when I received the LOI, the CAF thought I was still living with and dating my ex girlfriend because they said "you failed to disclose your current foreign national girlfriend" (event though I reported my current girlfriend as a cohabitant in my 2014 SF-86). I was so confused when I read the LOI because it made no sense to me. I even brought my current girlfriend (now fiancee) to the DOHA hearing to show that she was not my ex and that she is a U.S. person.

In the final decision letter, it listed possible mitigation actions like "Individual made prompt, good faith efforts to correct the omission, concealment, falsification, before being confronted with the facts...etc". This is exactly what I did back then during the subject interview, and what I did in 2014 when I put it in my SF-86.

I honestly do not know what their continued concerns were, as they were not articulated in any other way than my failure to report my ex girlfriend specifically on an SF-86 nine years ago and the continued confusion that she is no longer foreign.

It is truly maddening, but I want to understand what they see and what the disconnect is exactly.


#4

If you truly are set on pursuing it I suggest getting legal advice from an experienced security clearance appeal attorney, although at this point it is mute since you already held the appeal and have to wait a year before being eligible to reapply for a clearance.


#5

This is very disturbing that they appear to be applying a very strict interpretation of adjudicative guidelines here. Was there a difference in the SF-86s? Yes. But did the applicant have an explanation? Yes. Was there any attempt to hide information? No, as indicated by all the other disclosures.

It is also disturbing that if the applicant had left this information off the 2014 SF-86, he might have been cleared. He could have reasonably claimed that since he stopped seeing this woman six or seven years prior, there was no relationship. But instead he decided to "do the right thing" and screwed himself.

Also see the other discussion about changes to the SF-86 and foreign contacts :confused:

Even more baffling is that the denial was upheld on appeal.


#6

I did have a well-known security clearance law firm help craft the SOR rebuttals and DOHA representation during this process. When I try to re-engage in August, I'm debating if I should immediately seek an attorney during the SF-86 process or wait until there is an issue. Or is the fact that I have now had my clearance revoked reason enough to start out with legal council?

When the CAF sends out the LOI and the case goes through the process and the adjudicators make a ruling, is there some information or evidence they can use to make their decision that is not presented or disclosed in the case file?


#7

Indeed it is disturbing, but more confusing to me than anything. I presented the question to @marko.hakamaa about adjudicators using information other than what is presented in the case file to make their decision. Was there something else that was not disclosed on which they based their ruling, or is that something outside of their guidelines? If there were other information, would they legally have to disclose it or at least acknowledge its presence? Also, what are the statistics of those who have had their clearances denied eventually getting them re-instated?


#8

The administrative judge in the appeal has to lay out the case: what are the issues in accordance with the guidelines, was there any information presented by the applicant that mitigated the issues, and if not, why not. No one on this site, including myself, can purport to know why you were denied, so really you will have to figure it out based on the information you have.


#9

That makes sense. I have not yet seen the DOHA letter referenced in the final decision letter (which I assume would have the case layout in it from the judge), I was simply looking at the statements in the final decision letter itself. Is there some way other than a FOIA request I can do to get that?


#10

You or your attorney should have received it. http://www.dod.mil/dodgc/doha/Appeal_Instructions.pdf


#11

It's a shame that Hilary Clinton wasn't held to the same standard as you. Her negligence was deliberate and you disclosed everything. Wow. I don't know what to say other than I'm sorry whoever you are. What a flawed process if this is truly what happened from my perspective.

I'm wondering if the Investigator in the investigative report wrote up the report the way you described the situation. There seems to be a disconnect potentially between what you told the investigator and what was written in the investigative report.


#12

Because I'm military, my attorney said that it would go to my SSO first. I've been dutifully calling him once a month since the hearing last July to see if there had been any word on a decision. On Tuesday, he e-mailed me said that he received the final decision letter (which was dated August of last year)...not sure if the problem was on MARFORRES' end or PSAB's end, but still a ridiculously long time to wait only to find out that it had been denied over 7 months ago. I guess it makes it a little easier, because the one year long wait to re-apply is now only five months away.

It does seem peculiar that neither the SSO, I, or my attorney ever received the DOHA letter. Anyway, as a part of the autopsy for this mess, I am going to FOIA everything going back to 2008. A couple of questions:

1.) If and when I do find erroneous information in any of the files, how do I go by correcting it? Do I need to wait for the process to start up again or can I do it before?

2.) What, if any, difference is there between applying for a SECRET vs SCI? I know I will have to put that my clearance had been previously revoked, but would I have better luck going for a lower security position or would I face the exact same issues?


#13

Lol. I completely agree...and as someone with a CI background myself, it was shocked to see the leniency HRC received for the information that was found on her private server.

I think you may have hit the nail on the head about the investigators report in 2014. She seemed a little confused when I was explaining everything to her in regards to my ex-girlfriend and the timeline of events. But the follow-up questions she asked during the interview and her demeanor gave me the impression that she understood everything by the end of the meeting. I did not see the final report, so I do not know; however, I will say that she never recontacted me or the SSO about any concerns or follow up questions regarding the case, so when I got the LOI, the SSO and I were completely blindsided.

The subject interview was March 2014. On December 21, 2014, the investigation was completed and assigned to adjudications. On June 2015, I received the LOI. LOI rebuttal was submitted in August 2015. On February 2016, I received word that they decided to revoke my clearance. DOHA personal appearance in July 2016 to appeal. Final decision to revoke made in August 2016. I receive notification of said denial two days ago.

There are a couple of things I feel were at play. Number one was a continuous misunderstanding of the facts, as evidenced in the LOI. And number two was the political climate in the wake of Snowden and how no one wanted to put their name on adjudicating anything related to foreign influence/contact.


#14

I think you certainly need a Clearance lawyer. If the facts are as you say I agree it is frustrating. And I agree you seem to have a clear cut case to repeal this. Please keep us informed. Like you I was almost caught up in a similar situation where I discussed an item with my investigator, and fully discussed it with the polygrapher. Based on those conversations I re characterized how I presented it on my next SF 86 but was clear in a note to say "I am listing this differently based on the input from the Polygrapher; this information was adjudicated favorably in 2011. In and of itself that caused a large measure of stress for me as I once again made two more trips (5 years later) to Polygraph for my re-investigation.


#15

Check out Bigleylaw.com. He is a former investigator and so far has a great track record of winning these cases. Good luck.


#16

I certainly will, Janie. Thank you for the recommendation....I heard Sean Bigley and Mark Zaid are very good.


#17

Is your case still ongoing? Definitely a tough situation to be in especially because you wanted to be upfront and honest about everything. Makes me wonder if the adjudicator lean mostly on what is put on the sf86 more than what the investigator composes about the individual.